43 Barb. 421 | N.Y. Sup. Ct. | 1864
By the Court,
The will does not in terms direct the executors to sell the real estate, and the question presented is, whether they take that power by implication, which is the only question to be determined in this case. If the testator had merely directed a sale of the real estate and a distribution of the proceeds, although he omitted to designate the executors as the persons who should make such sale, yet, by implication, the authority to sell would have vested in the executors. (Meakings v. Cromwell, 5 N. Y. Rep, 136; Willard on Real Estate, p, 261; Williams’ Executors, p. 579.)
The doubt, which arises in this case, as to the authority of the executors to make the said sale, is created by the absolute devise of the real estate to the persons named in the will; and it is certainly a grave question whether in such case the authority to sell by the executors, can be implied, where they are not expressly named as the donees of the power. When real estate is directed to be sold, and the proceeds divided, the fund, by equitable conversion, becomes money that the testator gives, and not land; and hence the executor is authorized to distribute the same, under the general authority which he possesses to pay debts and legacies. (Willard on Real Estate, p. 261; Meakings v. Cromwell, 5 N. Y. Rep. 139.) But where, as in this case, the land is expressly devised to persons named and competent to take under the will, no such equitable conversion occurs. I understand this distinction to be clearly recognized in Meakings v. Cromwell, above cited. In that case there was no devise
In the case of Patton v. Rundall, the master of the rolls, at page 196, remarks: “It would not follow that it would by implication transfer the estate from the children in whom it was vested: that would be beyond any of the other cases. Before an implication is raised there must be an absence of express devise, and in opposition to a devise it could never be raised.”
I have been unable to find a case where the land was devised to others,, in which it has been held that executors were, by implication, vested with power to sell for the purpose of distribution. The case of Meakings v. Cromwell, certainly does not question the soundness of the principle decided in Patton v. Rundall, but draws a Very clear distinction between the two cases. In one there was a devise of the land to the children of the testator; in the other there was no such devise, but merely a direction to sell the land and divide the proceeds.
It is insisted that the first clause of the will does not amount to a devise of the land, but merely prescribes the share which each was to receive. I can not adopt that construction, as it does violence to the language used, and indulges an unwarrantable latitude of construction. It is an unquestionable rule in the construction of a will, that the intention of the testator* as gathered from the whole instru
accordingly.
Peckham, Miller and Ingalls Justices.]
